Hello.
Thanks for sending these important explanation and point and
congratulations to ARIN legal staff for this.
I would comment further saying that this type of assessment raises the
importance to some points used in some discussions sometimes like "The
internet evolved in X aspect and we need to adapt to it", "Business
require it and the registry cannot refuse such thing". It is necessary
to analyze with caution a lot of different aspects that sometimes may
look obvious due to 'evolution' but may only be interesting to a few.
Fernando
On 16/10/2019 20:16, Amy Potter wrote:
Hey ppml,
We received a staff and legal assessment for ARIN 2019-13 ARIN
Membership Legal Jurisdiction requirement a bit ago that presented
some serious concerns about adopting this policy. Based on these
concerns I plan to move to abandon this policy. Just wanted to give
the community an opportunity to voice their opinions one last time.
The policy proposal text is included at the end as a refresher.
Here were the legal assessment comments:
• There are significant material legal concerns regarding adoption of
this policy.
To date, entities receiving addresses from ARIN have an ARIN region
incorporation. This is important, as it has permitted ARIN to send
correspondence or make legal service in its region to the entities it
is servicing. The proposed policy would reverse 21 years of practice
and experience and require ARIN accept the necessity to potentially
serve legal papers via a foreign legal forum and litigate in
non-region countries. Such foreign legal forums may be located in some
of the countries not committed to the rule of law which is prevalent
in our region, and before foreign courts or tribunals which are
hostile to foreign business interest and/or where the legal system may
be expensive and unresponsive. In addition, the capability for ARIN
to know its customer will be substantially reduced for out of region
companies with no in-region domiciled entity. Considering the legal
risks that would result from the proposed policy, counsel has serious
concerns and would advise against adoption unless it is shown that
ARIN has clear and pressing need for adoption to fulfill its mission.
_Proposal Text_
Problem Statement:
Legal entities incorporated outside the ARIN service region that have
a strong nexsis to the ARIN as described in section 9 should be
permitted to hold direct allocations and assignments from ARIN.
Example: Imagine a US based global company that has many international
subsidiaries. The company does real business both in the US, Canada,
and Caribbean as well as in Europe, Asia, Latin America, and Africa.
The corporate headquarters, majority of offices and employees are in
the US. Most C-level execs live and work in the US. The majority of
customer base, network infrastructure, and revenue generation is
within the ARIN service region.
The company decides to offer their services as part of a global
service offering in a particular non-ARIN region country. Legal
restrictions require an in-country legal entity to hold ownership of
the service providing network including the registration of Autonomous
system number used for peering.
The global IP address management team desires to maintain their ARIN
relationship, and prefers to request ARIN to create an OrgID for the
(non-ARIN service region) in-country legal entity, have ARIN assign an
ASN, and re-allocate IPs from the US entity that offers the service
both inside and outside of the ARIN service region.
Policy Statement:
Current Text:
A real and substantial connection shall be defined as carrying on
business in the ARIN region in a meaningful manner. The determination
as to whether an entity is carrying on business in the ARIN region in
a meaningful manner shall be made by ARIN. Simply being incorporated
in the ARIN region shall not be sufficient, on its own, to prove that
an entity is carrying on business in the ARIN region in a meaningful
manner. Methods that entities may consider using, including
cumulatively, to prove that they are carrying on business in the ARIN
region in a meaningful manner include:
Revised Text:
A real and substantial connection shall be defined as carrying on
business in the ARIN region in a meaningful manner. The determination
as to whether an entity is carrying on business in the ARIN region in
a meaningful manner shall be made by ARIN. Simply being incorporated
in the ARIN region shall not be sufficient, on its own, to prove that
an entity is carrying on business in the ARIN region in a meaningful
manner. Likewise, *l**egal entities can demonstrate a substantial
connection to the ARIN service region without necessarily being
incorporated within the ARIN service region.***Methods that entities
may consider using, including cumulatively, to prove that they are
carrying on business in the ARIN region in a meaningful manner include:
_______________________________________________
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